MNS Holdings Pty Ltd v Minister for Immigration
[2020] FCCA 527
•13 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MNS HOLDINGS PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 527 |
| Catchwords: MIGRATION – Application for nomination of occupation under s.140GB of the Migration Act 1958 (Cth) – review of decision of Administrative Appeals Tribunal (AAT) – whether the AAT failed to consider evidence on the genuineness of the occupation – whether the AAT engaged in an active intellectual process – whether the error was material – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.140GB, 476 Migration Regulations 1994 (Cth), regs. 2.72(4), 2.72(10)(f) |
| Cases cited: Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091; (2015) 298 FLR 138 |
| Applicant: | MNS HOLDINGS PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 722 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 29 November 2018 |
| Date of Last Submission: | 22 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Leonard Karp |
| Solicitors for the Applicant: | Ms Carmeline Van Landenberg, Landenberg Law |
| Counsel for the Respondents: | Mr Dominic Delany |
| Solicitors for the Respondents: | Ms Harvee Dejean, Australian Government Solicitor |
ORDERS
THE COURT:
AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
GRANTS LEAVE to the Applicant to file and to rely on the amended application dated 15 November 2018.
ORDERS that the application be dismissed.
ORDERS that the Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 722 of 2018
| MNS HOLDINGS PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant, MNS Holdings Pty Ltd, seeks judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 13 February 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), dated 8 March 2018, not to approve MNS Holdings’ nomination under s.140GB of the Act.
The Tribunal found that MNS Holdings did not meet the requirements in reg.2.72(4) and reg.2.72(10)(f) of the Migration Regulations 1994 (Cth), as required by s.140GB(2) of the Act. First, the Tribunal was not satisfied the position of Quality Assurance Manager, the subject of the nomination application, was genuine as required by reg.2.72(10)(f), and secondly, that MNS Holdings was not a standard business sponsor as prescribed by reg.2.72(4).
Background
On 21 December 2015, MNS Holdings applied to the Department of Immigration and Border Protection for approval of nomination of an occupation under s.140GB of the Act. At the time, MNS Holdings was an approved standard business sponsor pursuant to s.140E of the Act.
MNS Holdings sought approval to nominate Mr Gladstone Mathiasz as a “Quality Assurance Manager”. At the Tribunal hearing, MNS Holdings, through its representative Ms Rupasinghe, stated that the company employed Mr Mathiasz from 1 March 2016 as a full time Quality Assurance Manager. (I note that his letter of engagement was dated 1 March 2016, and proposed commencement of the position within 2 days of approval of his 457 visa).
On 8 March 2016, the Delegate decided not to approve the nomination on the basis that it was not satisfied the nominated position of Quality Assurance Manager was genuine as required by reg.2.72(10)(f) of the Regulations.
On 26 March 2016, MNS Holdings applied to the Tribunal for review of the Delegate’s decision.
On 1 September 2017, MNS Holdings’ standard business sponsorship expired. On 19 October 2017, MNS Holdings lodged an application with the Department to renew the sponsorship. On 7 February 2018, the Department refused to grant the sponsorship.
MNS Holdings
MNS Holdings was incorporated in February 2013, and has operated a food and beverage business at Nobel Park in Melbourne since 12 December 2014. The business has operated under the trading name “Walawwa” ‑ The Bungalow at Sandown Regency (I note that the Tribunal erroneously and consistently refers to the name as “Sundown”).
A related company, BWS Hospitality Pty Ltd, operated the accommodation side of the business at the Sandown Regency. At the time of the Tribunal’s decision, MNS Holdings and BWS Hospitality together employed 12 full time employees (6 in each company) and 15 casual employees.
MNS Holdings had a Managing Director, an Operations Manager, and a Quality Assurance Manager, Mr Mathiasz. Its business also had an Executive Chef, a Sous Chef, 5 casual Cooks, and 2 casual kitchen Stewards.
During the 2016 ‑ 2017 financial year, MNS Holdings had a turnover of $400,000.
Proceedings before the Tribunal
As I have said, on 26 March 2016 MNS Holdings applied to the Tribunal for review of the Delegate’s decision.
On 6 September 2017, pursuant to s.359(2) of the Act, the Tribunal invited MNS Holdings, by 20 September 2017, to provide information that demonstrated MNS Holdings met all the requirements of the criteria in reg.2.72 of the Regulations.
On 18 September 2017, MNS Holdings requested an extension of 14 days from 20 September 2017 to submit the information requested by the Tribunal.
On 20 September 2017, the Tribunal granted MNS Holdings the extension requested until 4 October 2017 (extension 1). On 4 October 2017, MNS Holdings provided submissions in answer to the request by the Tribunal.
Also on 4 October 2017, MNS Holdings informed the Tribunal that its sponsorship had lapsed, and that the business was in the process of obtaining new sponsorship.
By letter dated 5 October 2017, the Tribunal invited MNS Holdings, by its representative, to attend a hearing on 26 October 2017. In that letter, the Tribunal invited MNS Holdings, by 19 October 2017, to provide evidence of a valid sponsorship or evidence of lodgement of a sponsorship application.
On 26 October 2017, MNS Holdings’ registered migration agent, as well as its HR manager, Ms Rupasinghe, attended the Tribunal hearing.
At the Tribunal hearing, by its representatives, MNS Holdings requested the Tribunal adjourn making its decision until MNS Holdings’ application for sponsorship to the Department was approved. The Tribunal agreed to adjourn its decision until 25 November 2017, to allow MNS Holdings to provide evidence of sponsorship, and submissions addressing concerns raised by the Tribunal member at the hearing regarding the genuineness of the position (extension 2).
On 24 November 2017, MNS Holdings requested an extension of 3 weeks to obtain the sponsorship approval from the Department and a concurrent 2 weeks to provide supporting evidence on the genuineness of the position (extension 3 – de facto extension by passage of time).
On 27 November 2017, MNS Holdings provided submissions regarding the genuineness of the nominated position. On 5 December 2017, MNS Holdings provided to the Tribunal a Market Salary Report for the position of Quality Assurance Manager prepared by Labour Support at MNS Holdings request.
On 8 December 2017, MNS Holdings requested an extension until 14 January 2018 in order to obtain sponsorship from the Department. The Tribunal did not expressly respond to the request but the extension was effected by the passage of time (extension 4 – de facto extension by passage of time).
On 3 January 2018, MNS Holdings provided an independent assessment on the genuineness of the Quality Assurance Manager position prepared by Labour Support.
On 19 January 2018, MNS Holdings requested a further extension of 14 days from the Tribunal as it had not received a decision on the sponsorship application before the Department. On 31 January 2018, the Tribunal informed MNS Holdings that in light of the previous adjournments, the Tribunal had decided to proceed with its decision on or after 2 February 2018 (in effect granting extension 5). The Tribunal also noted MNS Holdings’ failure to provide profit and loss statements as its representatives had undertaken to provide at the hearing.
On 31 January 2018, MNS Holdings requested a further 14 days extension in which to provide profit and loss statements, and to obtain a decision on the sponsorship application from the Department (request for extension 6 – extension effected by passage of time).
On 6 February 2018, MNS Holdings’ representative informed the Tribunal that the Department had decided to prioritise determining the sponsorship application.
On 13 February 2018, MNS Holdings provided the Tribunal with a copy of the Department’s sponsorship refusal decision (made on 7 February 2018) as well as the representative’s letter to the Department which identified alleged “administrative errors in the decision”, and requested the Department re-consider the refusal decision. MNS Holdings requested the Tribunal to delay making its decision for a further 7 days to allow the Department to consider the alleged errors identified by MNS Holdings (request for extension 7). In reply, the Tribunal informed MNS Holdings that in light of previous adjournments it decided to proceed with its decision. The Tribunal notified MNS Holdings of its final decision on the same day, 13 February 2018.
Legislative Framework
MNS Holdings was required to be an approved standard business sponsor under s.140E of the Act in order to nominate a proposed occupation under s.140GB. Section 140E of the Act provides for the Minister to approve an applicant as a sponsor. The section provides:
(1) The Minister must approve a person as a sponsor or in relation to one or more classes prescribed for the purpose of subsection (2) if the prescribed criteria are satisfied.
(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor.
…
Section 140GB of the Act provides as follows:
…
(2)The Minister must approve an approved sponsor's nomination if:
(a)in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC--the labour market testing condition under section 140GBA is satisfied; and
(b) in any case--the prescribed criteria are satisfied. …
In sum, s.140GB provides that an approved sponsor may nominate a proposed occupation. Pursuant to s.140GB(2)(b), the Minister must approve the sponsor’s nomination if, among other things, the prescribed criteria are satisfied, which criteria are contained in reg.2.72 of the Regulations. As at the date of the subject nomination application (21 December 2015), reg.2.72 provided, relevantly:
(1) This regulation applies in relation to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa.
(2) For subsection 140GB(2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
…
(4)The Minister is satisfied that the person is:
(a) a standard business sponsor; or
(b) a party to a work agreement (other than a Minister).
…
(10)If the person is a standard business sponsor—the Minister is satisfied that:
…
(f) the position associated with the nominated occupation is genuine;…
Pursuant to reg.2.72(4), the Minister (by his delegate) must be satisfied that the applicant is a standard business sponsor or a party to a work agreement (which did not apply to MNS Holdings). Pursuant to reg.2.72(10)(f), the Minister must be satisfied that the position associated with the nominated occupation is genuine.
The Tribunal’s decision
The issue before the Tribunal was whether MNS Holdings met the criteria for approval of the nomination, relevantly reg.2.72(4) and reg.2.72(10)(f), as at 13 February 2018, the date of the Tribunal’s decision. The Tribunal affirmed the Delegate’s decision for two reasons:
(i) the Tribunal was not satisfied that the position associated with the nominated occupation was “genuine” within the meaning of reg.2.72(10)(f).; and
(ii) the Tribunal was not satisfied that the applicant was a “standard business sponsor” within the meaning of reg.2.72(4)(a).
In its Decision, the Tribunal set out the legislative framework for a nomination approval and outlined the proceeding prior to the Tribunal hearing (as set out in [11] to [27] above). The Tribunal outlined the oral evidence given by Ms Rupasinghe at [13] to [23] of its Decision. At [24], the Tribunal stated that it expressed its concerns as to whether there was a genuine need for a Quality Assurance Manager at the business:
…considering that the business already has Operations Manager and Managing Director. In addition, the business employs a full time Chef who is there to make sure that the food he/she prepares is of good quality and that he is using quality ingredients. I further observed that the position of a Quality Assurance Manager is usually associated with manufacturing business and larger scale production lines. I further observed that according to the evidence before me, the sponsoring business does not have a quality assurance department and that the Nominee is not managing such a department.
At [29] of the Decision, the Tribunal quoted selected sections of MNS Holdings’ submissions dated 27 November 2017, addressing the genuine position requirement. The Tribunal also acknowledged that MNS Holdings had submitted a Market Salary Survey Report, its BAS statements from October 2016 to September 2017, historical company extracts for MNS Holdings and BWS Hospitality, and an Independent Assessment for Quality Assurance Manager prepared by Labour Support.
The Tribunal’s reasons for finding that the nominated position was not genuine were set out at [45] to [49] of its Decision (reproduced without correction):
[45]I have taken into account the evidence regarding the business’s turnover, number of employees, the offer of employment, position description and company’s organisational chart. I have taken into account submissions provided by the applicant as well as documentary evidence submitted in support of the arguments that a position associated with the nominated occupation of Quality Assurance Manager is genuine position.
[46]I have also considered document headed 'Independent Assessment‑Quality Assurance Manager prepared by Labour Support business from Brisbane. I give limited weight to this evidence as it production was requested and paid for by the review applicant.
[47]Based on the evidence before me, I am not satisfied that there is a genuine need for the Quality Assurance Manager at the business. According to the Organisational Chart provided by the applicant, the business already has Operations Manager and Managing Director. In addition, the business employs a full time Executive Chef, Sous Chef and number of casual cooks. It is within their job description to make sure that the meals prepared and ingredients necessary for preparation of meals are of good quality.
[48]The position of a Quality Assurance Manager is usually associated with manufacturing business and larger scale production lines. According to the evidence given during the course of the hearing, the sponsoring business does not have a quality assurance department and the Nominee is not managing such a department. Considering the size of the business, I am not satisfied that the position associated with the nominated occupation is genuine.
[49]Based on the evidence before me, I am not satisfied that the position associated with the nominated occupation is a genuine position. For these reasons the requirements of r.2.72(10)(f) are not met. Accordingly, the decision under review must be affirmed.
Based on the sponsorship refusal dated 7 February 2018, the Tribunal found that MNS Holdings was not a standard business sponsor as required by reg.2.72(4) of the Regulations.
In considering the request for extension 7 (see above at [27]), the Tribunal at [61] stated it was satisfied that MNS Holdings was not prevented from applying for a new nomination once it had secured a standard business sponsorship. Noting that it had granted 6 extensions already (see at [15], [19], [20], [22], [24] and [25] above), it considered that MNS Holdings had had sufficient time to address the central issues, and at [59]‑[62] it decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.
Grounds of review
MNS Holdings’ original application was filed in this Court on 19 March 2018. It contained 4 grounds. On 15 November 2018 (2 weeks before the hearing), MNS Holdings’ filed written submissions prepared by Mr Karp of Counsel, and attached a proposed amended application, dated 15 November 2018, abandoning the previous 4 grounds. The proposed amended application set out 1 ground as follows (without alteration):
1.The Tribunal erred in failing to consider substantial, clearly articulated submissions and evidence before it as to whether the requirements of Migration Regulation 2.72(1)(f) [sic] were met, such failure having potentially impacted on its deciding not to further delay the making of its final decision on the applicant's application.
Particulars
(a) Failure to consider submissions on the following matters;
(i)The nature of the applicant's business and the volumes of prepared food that it served.
(ii) The work that the nominated visa applicant was engaged to do.
(iii)The necessity for that work to be done,
(iv)Whether that work was consistent with the description of tasks undertaken by a "quality assurance manager" in the ANZSCO dictionary.
(v)Whether that work was within a chefs duties.
At hearing before me Mr Karp submitted that this ground in fact advances 2 grounds of review. First, whether there was a failure by the Tribunal to consider submissions on the matters particularised in (a) of the grounds (see [38] above), and secondly, the material effect such purported failure had on the Tribunal’s consideration of whether to grant another extension to allow for the determination of the status of MNS Holdings’ sponsorship.
Proceedings before the Court
At the commencement of the hearing before me, Mr Karp made an application to amend the original application, relying on the proposed amended application filed with his outline of submissions.
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth) “at any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit”.
Mr Karp explained that his client’s instructions came fairly late and resulted in the delay in filing an amended application. The only evidence explaining the delay came from the bar table. Mr Karp accepted that if leave was not granted, the application must fail, but submitted that the application has prospects of success.
Mr Delany, Counsel for the Minister, objected to the amended application on merits, and submitted that the amended application was futile. Mr Delany submitted that the Court should determine whether leave should be granted by reference to the prospects of the proposed amended application.
I invited Counsel to argue their cases as if leave were granted.
Proposed ground 1:
Mr Karp submitted that a qualitative analysis of whether a position is genuine within the meaning of reg.2.72(10)(f), as observed by Judge Smith, in this Court, in Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30], requires the analysis of whether the position is necessary or desirable for the proper functioning of MNS Holdings’ business. This includes the assessment of 5 matters, namely the nature and function of MNS Holdings, the work Mr Mathiasz was engaged to do, whether that work was consistent with the description of Quality Assurance Manager provided by ANZSCO, and whether that work was within the duties of a Chef (see particulars (a)(i)‑(v) to ground 1).
Mr Karp submitted that in assessing whether the Tribunal genuinely and truly considered the matters essential to the exercise of the power invoked, this Court must assess whether a real, as distinct from a purported, exercise of the power has occurred, referring to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [559]. He submitted that it is the reality and not the appearance that matters and that whilst a failure to refer to evidence may not vitiate a Tribunal decision, failure to consider relevant material can amount to jurisdictional error: see SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; (2011) 125 ALD 38 at [43]. He further submitted that the Tribunal failed to engage in an “active intellectual process” focused on the matters at hand: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212], [229]; [2005] FCAFC 134.
Mr Karp submitted that failure by the Tribunal to consider the 5 matters is jurisdictional because it could have made a difference to the Tribunal’s decision to refuse to grant extension 7: see Hossain v Minister for Immigrationand Border Protection (2018) 92 ALJR 780 at [30]; (2018) 264 CLR 123. I set out the submissions on the first matter separately, and the remaining 4 collectively.
Nature of business
First, in oral submissions, Mr Karp submitted that the Tribunal failed to consider submissions that referred to MNS Holdings as a business which consists of accommodation, a licenced restaurant, bar and café, and conference rooms, and that MNS Holdings provides large quantities of “high‑risk foods” to a large number of staying guests, event guests and the general public. He submitted that the number of plates served per week increased from 1,357 to 2,269 plates per week as submitted by MNS Holdings in the Labour Support report. He further submitted that the likelihood of contamination increases when “high risk foods” are prepared in bulk, substantiating the need for quality management systems.
The remaining 4 matters
Secondly, Mr Karp submitted that the Tribunal failed to actively engage with MNS Holdings’ submissions that referred to the work Mr Mathiasz was engaged to do, the necessity for that work to be done, whether that work was within the duties of a chef, and whether that work was consistent with the ANZCO description of a Quality Assurance Manager.
At [47] of the Decision, the Tribunal referred to the organisational chart provided by MNS Holdings, and was not satisfied that there was a genuine need for a Quality Assurance Manager because the business has an Operations Manager and Managing Director (see above at [35]). In oral submissions, Mr Karp submitted that this evidenced a lack of engagement with submissions that showed Mr Mathiasz’s role specifically related to food with an emphasis on safety.
Mr Karp argued that Mr Mathiasz was engaged to plan, organise, direct, control, and coordinate the placement of quality systems and certification processes to ensure that food is kept safely as outlined in the position description provided. He contended that the Tribunal failed to actively consider whether Mr Mathiasz’s position description was consistent with the ANZCO description.
He further submitted that Mr Mathiasz’s role was different to the role of a chef, as outlined in the Labour Report before the Tribunal titled “Difference in responsibilities between a Chef and a Quality Assurance Manager”. He submitted that Mr Mathiasz’s duties fell outside the ambit of the duties of the Chefs and the Operations Manager.
In response, Mr Delany submitted that the Tribunal’s active engagement with these matters emerges from the Decision. It was apparent that in finding that Mr Mathiasz’s role was not necessary, the Tribunal had in mind the position description and the submissions that went to the difference between a Quality Assurance Manager and a Chef.
Mr Delany accepted that the Tribunal’s decision did not contain an explicit comparison between the ANZSCO description and Mr Mathiasz’s position description. He submitted however, that the Tribunal’s findings at [48] (see above at [35]), should be read as a finding that Mr Mathiasz’s role is likely distinct from the large‑scale quality assurance role envisaged by the terms of the ANZSCO description. In any case, the ANZSCO description is not a definitive statement of what is required in a particular position but that it is only a guide: see Pasricha v Minister for Immigration and Border Protection [2017] FCA 779 at [52]‑[53].
Mr Delany further submitted that Mr Karp failed to provide clear evidence necessary to show that the Tribunal failed to actively consider the 5 matters: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 especially at [35] and [48]. In any event, the Tribunal decision was not limited to mere assertion that it took the 5 matters into account because a deeper engagement can be seen in its evaluative analysis of the evidence concerning MNS Holdings’ turnover, the number of employees, and the work they were engaged to do.
Consideration
I accept Mr Delany’s submission that the Tribunal’s consideration of the 5 matters was not limited to an assertion that it took evidence regarding those matters into account at [45] and [46] (see above at [35]).
I consider that the Tribunal did take into account the available evidence before it, and drew reasonable inferences as to the facts and circumstances of MNS Holdings’ food and beverage business. I consider the misspelling of “Sandown” as “Sundown” a mere typographical error (and perhaps as displaying a lack of knowledge of racecourses in Victoria).
From [10] through to [23] it identified evidence provided to the Tribunal, including about the nominee, payment of his wages, the number of employees, organisational chart, and at [24], concerns when the business was compared against the size and types of businesses who usually have a Quality Assurance Manager. At [29] the Tribunal set out submissions which sought to address the concerns raised.
It is apparent from these references to the evidence that the Tribunal actively engaged with the issues raised by the application before it and the evidence submitted. That its engagement was meaningful, in the sense of proper, genuine, and realistic, and was an active intellectual process is evident from the reasoning and findings at [45] to [49], which address the evidence previously identified, and engages with it, and its deficiencies.
The Tribunal comparatively analysed the job descriptions of the employees of MNS Holdings to determine the necessity of the work Mr Mathiasz was engaged to do. It is also evident that the Tribunal, at [47] and [48], had regard to MNS Holdings’ business structure. At [45]‑[47], the Tribunal stated it considered MNS Holdings’ turnover, number of employees and organisational chart (which is apparent referred back to [10], [18], [24], [29]‑[32] of the Decision) and at [48] it contrasted those matters with manufacturing businesses that usually engage a Quality Assurance Manager. I consider that the Tribunal here has demonstrated an evaluative analysis of the evidence provided by MNS Holdings: see Cargo First Pty Ltd v Minister for Immigration & Anor [2015] FCCA 2091 at [30].
It follows further, that I do not find that the requisite intellectual engagement was absent: see Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569.
I find that the Tribunal did not err. Proposed Ground 1 is not established; it must fail.
Proposed Ground 2
By proposed Ground 2, MNS Holdings contends that failure by the Tribunal to engage in an active intellectual process is jurisdictional because it was material to the Tribunal’s decision to refuse to grant extension 7.
Mr Karp contended that the Tribunal’s decision to refuse to grant MNS Holdings a further 7 days to rectify its sponsorship status cannot be divorced from the Tribunal’s finding that Mr Mathiasz’s position was not genuine. Had the Tribunal actively engaged with the evidence regarding the genuineness of Mr Mathiasz’s role, it would have exercised its discretion differently to grant MNS Holdings extension 7.
In response, Mr Delany contended that the Tribunal was bound to affirm the Delegate’s decision because MNS Holdings did not meet the criterion prescribed in reg.2.72(4) of the Regulations. He submitted that the Tribunal’s considerations regarding extension 7 would not have been affected by the Tribunal coming to a different conclusion concerning the genuineness of Mr Mathiasz’s role.
Consideration
I have found the Tribunal did not err in its consideration of the question of genuineness. I do not accept Mr Karp’s contention. I consider that the Tribunal addressed the question of the genuineness of the nominated role independently from the issue of the requirement that MNS Holdings be, at the time of the decision, an approved sponsor. As this proposed Ground 2 is contingent on a finding of error on the part of Tribunal with regard to proposed Ground 1, it is not established.
In any case, I do not accept that any error by the Tribunal in its consideration of the genuineness of Mr Mathiasz’s role would have deprived MNS Holdings’ of a successful outcome: see Hossain. Both criteria had to be satisfied.
As I have said, the Department had refused to grant MNS Holdings sponsorship on 7 February 2018. On 13 February 2018, MNS Holdings requested the Tribunal grant extension 7 to allow 7 days to rectify its sponsorship status. On the same day, the Tribunal exercised its discretion under s.363(1)(b) to refuse to grant the extension, inter alia on the basis that it was satisfied that MNS Holdings was not prevented from applying for a new nomination application once it had secured sponsorship. The Tribunal considered that MNS Holdings had been given sufficient time to address the central issues arising in the application for review. At [60], the Tribunal had regard to authorities that it is not required to indefinitely defer its decision. The Tribunal also had regard to authorities concerning the reasonableness of any request for adjournments. MNS Holdings was not an approved sponsor and did not satisfy the criterion as required by reg.2.72(4) as at the time of the Decision. Accordingly the Tribunal was bound to affirm the Delegate’s decision.
I find that the Tribunal did not err. MNS Holdings has not established this proposed Ground 2; it follows it must fail.
Conclusion and orders
In order to consider prospects of success on the proposed amended application, I heard the submissions as if leave was granted. Having regard to those submissions in the matter and for the above reasons I consider that the grounds of review of the amended application must fail. In this case, however, as I have proceeded to consider the substantive case, it is appropriate that I grant leave to file and rely on the amended application. As I have decided that the grounds raised in the amended application must fail, the amended application must be dismissed with costs.
I will so order.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 13 March 2020
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